By: Rodger A. Heaton
“You have permission to read my e-mails, regardless of who I wrote them to or whether they contain any personal, private, and confidential information. You may also read my text messages, diary entries and drafts of my letters to others; you may look at all the pictures I have saved. You do not need to tell me that you have read or examined them. In other words, I consent to you having unlimited access to everything that I have created or stored electronically. Finally, you may create a comprehensive map-like summary of where I was when I made each phone call or sent each text message.”
Can you imagine making these statements to a total stranger? Or worse, to numerous strangers? Or to people who may have a financial incentive to use the information to their advantage and perhaps to your disadvantage? Not many people would be inclined to give such consent expressly. But, millions of people routinely grant broad consent impliedly by their computer use practices or by clicking past a lengthy privacy policy without reading it or any consideration of what it actually authorizes.
The law addressing consent to access electronic data has not kept pace with technology. People are using smartphones and personal computers to communicate continually. The lines between business and personal communications are blurring, or at least the devices used to conduct both our professional and personal business are multiplying. It has become possible to listen in on a business conference call while simultaneously texting a note to a spouse and/or conducting a personal online banking transaction. Many people check their personal e-mail accounts while on a break or lunch hour, using their office computer to access their Internet service provider through a web browser. And, the pressures to work longer hours and to use time efficiently combined with a desire not to carry and switch between multiple phones and computers create strong incentives to multi-task. Unquestionably, people sometimes elect to forego their personal privacy by the choices they make. Those who participate in the use of social networking mechanisms like Facebook and Twitter not only invite public access to details of their lives, but also seem to relish their ability to generate large audiences to witness their thoughts. Recently, Twitter even announced that every tweet that has been created since 2006 will soon be housed for public inspection and consumption at the Library of Congress.
Read the full Chicago Daily Law Bulletin article, Electronics and Consent: Where has all the Privacy Gone?
This article originally appeared in Chicago Daily Law Bulletin’s Law Day Edition and has been reprinted with permission. © 2011 Law Bulletin Publishing Co.
This publication has been posted by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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